Hazard Coal v. Clemens Workmen's Compensation

Opinion of the Court by Commissioner Sandidge Affirming. Appellee, Gilbert Clemens, was awarded compensation by tbe workmen’s compensation board at the rate of $15.00 a week for total disability, from January 12, 3922, to March 13. 1923, and thereafter át the rate of $6.00 a week for fifty per cent impairment until further order of the board. Appellant, Blue Grass Coal Corporation, appealed from the .award so made to the Perry circuit court. The judgment of that court confirmed the award made and this appeal has been prosecuted. It is conceded that appellee was employed by appellant, that they both were operating’ under the provisions of the Kentucky workmen’s compensation act, and that appellee was injured “by accident arising out of and in the course of his employment. ” The sole ground upon which appellant seeks to reverse the award made by the compensation board is that it is not supported by any evidence, in that upon the hearing no evidence was introduced for appellee tending to establish that he was totally disabled for the period of time he was compensated- as totally disabled, or that he was disabled to the extent of fifty per cent during the time he was compensated as being fifty per cent disabled, as found by the award. In Employers’ Liability Assurance Corporation, et al. v. Gardner, et al., 204 Ky. 216, the rule was thus written: “Unless there is an entire absence of substantial and credible' evidence to support the board’s finding of facts, this court, in the absence of fraud, cannot disturb it. Andrews Steel Co. v. McDermott, 192 Ky. 679, 234 S. W. 275; Valentine v. Weaver, 191 *488 Ky. 37, 228 S. W. 1036; Ames Body Corp. v. Vollman, 199 Ky. 358, 251 S. W. 170; Robinson-Pettet v. Workmen’s Compensation Board, etc., 201 Ky. 719, 258 S. W. 318.” The uneontradicted evidence discloses that while working for appellant and on or about January 12, 1922, appellee, while loading’ coal, was injured by a fall of slate from the roof of the mine. rOne of the bones of one of his ankles was fractured, causing the chief injury. A temporary dressing was first applied.. The following day the ankle was bandaged in splints, and some eight or ten days later a plaster of Paris bandage was applied. It remained 'for some thirty days and then was removed and replaced. Appellee was treated by the physicians employed by appellant during this time and was subsequently sent to Lexington, Kentucky, and treated 'there for a while. At the time of the hearing before the workmen’s compensation board, appellee was still walking on crutches, and testified that due to the stiffness of his ankle joint and the pain he suffered when attempting to walk unsupported he was able to walk only by using crutches. Appellee was examined in the presence of the member of the workmen’s compensation board who heard this case, by two or three physicians, and the ankylosed condition of the ankle and pedal digits was fully demonstrated to the board by that examination. A physician and surgeon introduced as a witness for appellee testified that he had examined him that day, described the ankylosed condition of his ankle and foot, and testified that for purposes of farm labor, in his judgment, appellee’s injuries impaired him twenty-five per cent and that his injuries as relating to the work in which he was employed when injured (coal loading ip a coal mine) impaired him fifty per cent. Some two or three physicians and surgeons testified for appellant as to having examined appellee, and they placed the impairment of his ability .to laibor at fifteen per cent. However, they all conceded the ankylosed condition of his ankle and foot as the result of the injury, but expressed the opinion that that condition would improve with use, but all agreed that it would never be restored to its former condition. In that state of case it can not be held that there was no credible evidence to support the finding of fact by the compensation board. The question, of course, is subject to review and such change at *489 the hands of the workmen’s compensation hoard as changed conditions may warrant. Perceiving no error in the judgment appealed from it is therefore affirmed.